[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39315-39317]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16806]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0060]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL--030 Use of the Terrorist Screening Database
System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of a newly established system of records pursuant to the Privacy
Act of 1974 for the ``Department of Homeland Security/ALL--030 Use of
the Terrorist Screening Database System of Records'' and this proposed
rulemaking. In this proposed rulemaking, the Department proposes to
exempt portions of the system of records from one or more provisions of
the Privacy Act because of criminal, civil, and administrative
enforcement requirements.
DATES: Comments must be received on or before August 5, 2011.
ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0060, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background
documents or
[[Page 39316]]
comments received go to http://www.regulations.gov.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions and privacy
issues please contact: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer, Privacy Office, Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the
Department of Homeland Security (DHS) proposes to establish a new
system of records titled, ``DHS/ALL--030 Use of the Terrorist Screening
Database (TSDB) System of Records.'' DHS is maintaining a mirror copy
of the Department of Justice (DOJ)/Federal Bureau of Investigation
(FBI)--019 Terrorist Screening Records System of Records (August 22,
2007, 72 FR 47073) in order to automate and simplify the current method
for transmitting the TSDB to DHS and its components.
Homeland Security Presidential Directive 6 (HSPD-6), issued in
September 2003, called for the establishment and use of a single
consolidated watchlist to improve the identification, screening, and
tracking of known or suspected terrorists and their supporters. The
FBI/TSC maintains and distributes the TSDB as the U.S. government's
consolidated terrorist watchlist. DHS and the FBI/TSC, working
together, have developed the DHS Watchlist Service (WLS) in order to
automate and simplify the current method for transmitting TSDB records
from the FBI/TSC to DHS and its components.
The WLS will allow the FBI/TSC and DHS to move away from a manual
and cumbersome process of data transmission and management to an
automated and centralized process. The WLS will replace multiple data
feeds from the FBI/TSC to DHS and its components, as documented by
information sharing agreements, with a single feed from the FBI/TSC to
DHS and its components. The WLS is a system to system secure connection
with no direct user interface.
DHS and its components are authorized to access TSDB records via
the WLS pursuant to the terms of information sharing agreements with
FBI/TSC. DHS is publishing this SORN and has published privacy impact
assessments to provide additional transparency into how DHS has
implemented WLS. DHS will review and update this SORN no less then
biennially as new DHS systems come online with the WLS and are approved
consistent with the terms of agreements with FBI/TSC. There are five
DHS systems that currently receive TSDB data directly from the FBI/TSC
and will use the WLS. These systems have existing SORNs that cover the
use of the TSDB:
(1) Transportation Security Administration (TSA), Office of
Transportation Threat Assessment and Credentialing: DHS/TSA--002
Transportation Security Threat Assessment System (May 19, 2010, 75 FR
28046);
(2) TSA, Secure Flight Program: DHS/TSA--019 Secure Flight Records
System (November 9, 2007, 72 FR 63711);
(3) U.S. Customs and Border Protection (CBP), Passenger Systems
Program Office for inclusion in TECS: DHS/CBP--011 TECS System
(December 19, 2008 73 FR 77778);
(4) U.S. Visitor and Immigration Status Indicator Technology (US-
VISIT) Program for inclusion into the DHS Enterprise Biometrics Service
(IDENT): DHS/USVISIT--0012 DHS Automated Biometric Identification
System (June 5, 2007, 72 FR 31080); and
In addition, two DHS components will receive TSDB data via the WLS
in the form of a computer readable extract. The components' use of the
TSDB data is covered by existing SORNs:
(1) Office of Intelligence and Analysis (I&A): DHS/IA-001
Enterprise Records System, (May 15, 2008 73 FR 28128), and
(2) U.S. Immigration and Customs Enforcement (ICE): DHS/ICE-009
External Investigations, (January 5, 2010 75 FR 404).
Information stored in the WLS will be shared back with the FBI/TSC
in order to ensure that DHS and the FBI/TSC can reconcile any
differences in the database and ensure DHS has the most up-to-date and
accurate version of TSDB records. All other sharing will be conducted
pursuant to the programmatic system of records notices and privacy
impact assessments discussed in this SORN.
DHS is planning future enhancements to the WLS that will provide
for a central mechanism to receive information from DHS components when
they encounter a potential match to the TSDB and send this information
to the FBI/TSC. DHS will update this SORN to reflect such enhancements
to the WLS, as part of its biennial reviews of this SORN once that
capability is implemented.
DHS is publishing this SORN to cover the Department's use of the
TSDB in order to provider greater transparency to the process.
Concurrent with the publication of this SORN, DHS is issuing a
Notice of Proposed Rulemaking to exempt this system from specific
sections of the Privacy Act.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which the U.S. Government
collects, maintains, uses, and disseminates personally identifiable
information. The Privacy Act applies to information that is maintained
in a ``system of records.'' A ``system of records'' is a group of any
records under the control of an agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual. In
the Privacy Act, an individual is defined to encompass U.S. citizens
and lawful permanent residents. As a matter of policy, DHS extends
administrative Privacy Act protections to all individuals where systems
of records maintain information on U.S. citizens, lawful permanent
residents, and visitors.
The Privacy Act allows government agencies to exempt certain
records from the access and amendment provisions. If an agency claims
an exemption, however, it must issue a Notice of Proposed Rulemaking to
make clear to the public the reasons why a particular exemption is
claimed.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/ALL--030 Use of the Terrorist Screening Database System of
Records. Some information in DHS/ALL--030 Use of the Terrorist
Screening Database System of Records relates to official DHS national
security and law enforcement activities. These exemptions are needed to
protect information relating to DHS activities from disclosure to
subjects or others related to these activities. Specifically, the
exemptions are required to preclude subjects of these activities from
frustrating these processes. Disclosure of information to the subject
of the inquiry could also permit the subject to avoid detection or
apprehension. In addition, as a recipient of a mirror copy of the
[[Page 39317]]
TSDB, which is maintained by the FBI/TSC, DHS is carrying forward the
exemptions taken by the DOJ/FBI--019 Terrorist Screening Records System
of Records (August 22, 2007, 72 FR 47073) in order to prevent these
records from improper disclosure. The exemptions proposed here are
standard law enforcement and national security exemptions exercised by
a large number of federal law enforcement and intelligence agencies. In
appropriate circumstances, where compliance would not appear to
interfere with or adversely affect the law enforcement purposes of this
system and the overall law enforcement process, the applicable
exemptions may be waived on a case by case basis.
A notice of system of records for DHS/ALL--030 Use of Terrorist
Screening Database System of Records is also published in this issue of
the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. At the end of Appendix C to Part 5, add paragraph 55 to read as
follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
55. The DHS/ALL--030 Use of Terrorist Screening Database System
of Records consists of electronic and paper records and will be used
by DHS and its components. The DHS/ALL--030 Use of Terrorist
Screening Database System of Records is a repository of information
held by DHS in connection with its several and varied missions and
functions, including, but not limited to the enforcement of civil
and criminal laws; investigations, inquiries, and proceedings there
under; national security and intelligence activities; and protection
of the President of the U.S. or other individuals pursuant to
Section 3056 and 3056A of Title 18. The DHS/ALL--030 Use of
Terrorist Screening Database System of Records contains information
that is collected by, on behalf of, in support of, or in cooperation
with DHS and its components and may contain personally identifiable
information collected by other federal, state, local, tribal,
foreign, or international government agencies. The Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to the limitations set forth
in 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f);
(g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to the limitation
set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
Exemptions from these particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made,
for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could inform the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
unreasonable administrative burden by requiring investigations to be
continually reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their investigative training
and exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (e)(12) (Computer Matching) if the agency is
a recipient agency or a source agency in a matching program with a
non-Federal agency, with respect to any establishment or revision of
a matching program, at least 30 days prior to conducting such
program, publish in the Federal Register notice of such
establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
(k) From subsection (h) (Legal Guardians) the parent of any
minor, or the legal guardian of any individual who has been declared
to be incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, may act on behalf of the
individual.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-16806 Filed 7-5-11; 8:45 am]
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